Exhibit 10.52
NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE HEREUNDER NOR ANY
AMERICAN DEPOSITARY SHARES REPRESENTING THE SECURITIES ISSUABLE HEREUNDER HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
NONE OF THEM MAY BE OFFERED, SOLD, TRANSFERRED, ASSIGNED NOR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT
TO PURCHASE 1,000,000 ORDINARY SHARES OF
SENETEK PLC
Issued: June 8, 2000
Expires: June 8, 2003
This Warrant certifies that Revlon Consumer Products Corporation or its
registered and permitted successors or assigns ("Revlon" or the "Holder"), is
entitled to, subject to the terms set forth below, purchase from SENETEK PLC, a
corporation organized under the laws of England and Wales (the "Company"), from
time and time up to One Million (1,000,000) duly authorized, validly issued,
fully paid and nonassessable Ordinary Shares (as such number may be adjusted
pursuant to Section 4(a) and Section 5 herein) which may be exchanged for
American Depositary Shares ("ADS") represented by American Depositary Receipts
("ADR") (the Ordinary Shares of the Company, including any shares into which it
may be changed, reclassified, or converted, are herein referred to as the
"Ordinary Shares"). This Warrant is given in connection with and as partial
consideration for the execution and delivery by Holder to the Company of the
License Agreement (as defined in Section 15(a)(ii)) and the performance of its
obligations thereunder. The Ordinary Shares issuable upon exercise of the
Warrant (and any other or additional shares, securities or property that may
hereafter be issuable upon exercise of the Warrant) are sometimes referred to
herein as the "Warrant Shares," and the maximum number of shares so issuable
under this Warrant is sometimes referred to as the "Aggregate Number" (as such
number may be increased or decreased as more fully set forth herein).
This Warrant is subject to the following provisions, terms and conditions:
SECTION 1. Exercise of Warrant.
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(a) Subject to Section 15 hereof, to exercise this Warrant in whole or in
part, the Holder shall deliver to the Company at its principal office located at
000 Xxxxxxx Xxxx, Xxxx, Xxxxxxxxxx 00000:
(A) a written notice, in substantially the form of the Exercise Notice
attached hereto as Exhibit 1, of the Holder's election to exercise this Warrant,
which notice shall specify the number of Warrant Shares to be purchased,
(B) (i) cash, money order, certified check or wire transfer of
immediately available funds payable to the Company, in an amount equal to the
Exercise Price (as defined below) multiplied by the number of Warrant Shares
being purchased, or (ii) a notice stating the Holder's intent to effect the
exchange of this Warrant, in whole or in part, into such number of Warrant
Shares as shall equal (x) the number of Warrant Shares specified by the Holder
in its notice (the "Total Number") less (y) the number of Warrant Shares equal
to the quotient obtained by dividing (aa) the product of the Total Number and
the then existing Exercise Price by (bb) the Fair Market Value of an Ordinary
Share (as defined below), and
(C) this Warrant.
The Company shall as promptly as practicable, and in any event within ten (10)
Business Days thereafter, execute and deliver or cause to be executed and
delivered, in accordance with such notice, a certificate or certificates
representing the aggregate number of Warrant Shares specified in such notice.
The stock certificate or certificates so delivered shall be in such
denominations as may be specified in such notice and shall be issued in the name
of the Holder or such other name as shall be designated in such notice. Such
certificate or certificates shall be deemed to have been issued and the Holder
or any other person or entity so designated to be named therein shall be deemed
for all purposes to have become a Holder of record of such shares immediately
prior to the close of business on the date such notice is received by the
Company as aforesaid. If this Warrant shall have been exercised only in part,
the Company shall, at the time of delivery of said stock certificate or
certificates, deliver to the Holder a new Warrant evidencing the rights of the
Holder to purchase the remaining Ordinary Shares called for by this Warrant,
which new Warrant shall in all other respects be identical to this Warrant, or,
at the request of the Holder, appropriate notation may be made on this Warrant
and the same returned to the Holder. The Company shall pay all expenses, taxes
(except United Kingdom stamp tax duties) and other charges payable in connection
with the preparation, issue and delivery of such certificates and new Warrants,
except that in case such stock certificates or new Warrants shall be registered
in a name or names other than the name of the Holder, funds sufficient to pay
all stock transfer taxes that are payable upon the issuance of such stock
certificates or new Warrants shall be paid by the Holder at the time of
delivering the notice of exercise mentioned above.
(b) All Ordinary Shares issued upon the exercise of this Warrant shall be
validly issued, fully paid and nonassessable and free from all preemptive rights
of any stockholder, and from all taxes, liens, encumbrances and charges with
respect to the issue thereof (other than United Kingdom stamp duty taxes and any
other transfer taxes) and, if any Ordinary Shares, American Depositary Receipts
representing American Depositary Shares issued with respect to such Ordinary
Shares, are then listed on a national securities exchange (as defined in the
Securities Exchange Act of 1934, as amended) or quoted on an automated quotation
system, shall be listed or quoted thereon, as the case may be, to the extent
permissible under the rules of
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such exchange and not prohibited by law, it being understood that such
listing does not bear upon the transferability of such shares under the Act and
the other provisions of this Agreement.
(c) The Company shall not be required upon any exercise of this Warrant to
issue a certificate representing any fraction of an Ordinary Share, but, in lieu
thereof, shall pay to the Holder cash in an amount equal to a corresponding
fraction (calculated to the nearest 1/100 of a share) of the Fair Market Value
(as defined below) of one Ordinary Share on the Business Day immediately prior
to the date of receipt by the Company of notice of exercise of this Warrant.
(d) The Company shall pay all depositary fees payable to the depositary in
respect of the issuance of American Depositary Shares or American Depositary
Receipts in respect of Ordinary Shares issued upon exercise of the Warrant.
(e) The "Fair Market Value" of any securities shall be determined as
follows:
(i) if such security is listed on one or more national securities
exchanges (within the meaning of the Securities Exchange Act of
1934, as amended), the Fair Market Value shall be the average
closing price of such security for the most recent twenty (20)
trading days on the principal exchange on which such security is
then trading; or
(ii) if such security is not traded on a national securities exchange
but is quoted on NASDAQ or a successor quotation system, the Fair
Market Value shall be the average last sales price for the most
recent twenty (20) trading days as reported by NASDAQ or such
successor quotation system; or
(iii) if such security is not publicly traded on a national securities
exchange and is not quoted on NASDAQ or a successor quotation
system, the Fair Market Value shall be determined in good faith
by the board of directors of the Company; provided, however, in
the event the Holder disagrees with such good faith
determination, it may require that the Company engage an
independent "Big Five" accounting firm mutually acceptable to the
Company and the Holder (the fees and expenses of which shall be
paid one-half by Holder and one-half by the Company) to determine
the Fair Market Value of such securities using generally accepted
valuation methodologies which determination shall be binding on
the Company and Holder.
SECTION 2. Terms and Conditions of Warrants.
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(a) Exercise. This Warrant to purchase One Million (1,000,000) (as adjusted
in accordance with the principles of Section 4(a) or Section 5 hereof) Ordinary
Shares shall be
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exercisable at any time, and from time to time, on or after the date hereof (the
"Exercise Date"), and shall expire at 11:59 p.m., New York City time, on June 8,
2003 (the "Expiration Date").
(b) Purchase Price. Subject to the provisions of Section 5 hereof, the
purchase price per Ordinary Share shall be $6.00 (the "Exercise Price").
(c) Restrictions on Transfer and Legend.
(i) Each certificate for any Warrant Shares issued upon the exercise
of this Warrant, and each certificate issued upon the transfer of any such
Warrant Shares and each American Depositary Receipt representing American
Depositary Shares (except as otherwise permitted by this Section 2(c)) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO SUCH SECURITIES UNDER THE ACT AND REGISTRATION OR
QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAW OR AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT REQUIRED.
(ii) The restrictions imposed by this Section 2(c) upon the
transferability of this Warrant and Warrant Shares and related American
Depositary Shares shall cease and terminate as to this Warrant, any particular
Warrant Shares or related American Depositary Shares, (a) when such securities
shall have been effectively registered under the Securities Act of 1933, as
amended (the "Securities Act") and disposed of in accordance with the
registration statement covering such securities, or (b) when in the reasonable
opinion of counsel for the Company such restrictions are no longer required in
order to comply with the Securities Act. Whenever such restrictions shall
terminate as to this Warrant, any Warrant Shares or related American Depositary
Shares, the Holder thereof shall be entitled to receive from the Company,
without expense, new certificates of like tenor not bearing the restrictive
legend set forth in Section 2(c)(i).
(d) Investment Representation. The Holder, by acceptance hereof, represents
as of the date hereof, as follows:
(i) The Warrant Shares issuable upon exercise of the Warrant
(collectively, the "Acquired Securities") will be acquired for investment for
the Holder's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part of the Acquired Securities in contravention
of applicable law, and that the Holder has no present intention of selling,
granting any participation in, or otherwise distributing the same. The Holder
does not
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have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participations to such person or to any third person in
or with respect to any of the Acquired Securities;
(ii) The Holder is and upon the acquisition of Acquired Securities
upon exercise of the Warrant will be an "accredited investor" within the meaning
of Rule 501 of Regulation D of the Rules and Regulations of the Securities and
Exchange Commission under the Securities Act. The Holder has not been organized
for the purposes of acquiring the Acquired Securities;
(iii) The Holder understands that the Acquired Securities it may
acquire as contemplated by this Warrant are "restricted securities" within the
meaning of Rule 144 under the Securities Act ("Rule 144") inasmuch as they will
be acquired from the Company in a transaction not involving a public offering
and that under the federal securities laws and applicable regulations such
Acquired Securities may be resold without registration under the Securities Act
only in certain limited circumstances. In this connection, the Holder represents
that it is familiar with Rule 144 and understands the resale limitations imposed
thereby and by the Securities Act. The Holder acknowledges that its investment
in the Acquired Securities may be an illiquid investment requiring the Holder to
bear the economic risk of the investment for an indefinite period;
(iv) Without in any way limiting the representations set forth in this
Section 2(d), the Holder agrees not to make any disposition of all or any
portion of the Acquired Securities unless and until the transferee has agreed in
writing for the benefit of the Company to be bound by the terms of this Warrant
(provided that such Holder is making such disposition in a transaction other
than pursuant to Rule 144 or under an effective registration statement under the
Securities Act and in accordance with any applicable state securities laws), and
(A) the Holder shall have notified the Company of the proposed disposition, and
(B) if requested by the Company, the Holder shall have furnished the Company
with an opinion of counsel, in form and substance reasonably satisfactory to the
Company, rendered by a law firm reasonably satisfactory to the Company
experienced in matters involving the sale of securities under federal and state
securities laws, that such disposition will not require registration of the
Acquired Securities under the Securities Act or registration or qualification
under any state securities or "blue sky" law; and
(v) In the event certificates for Ordinary Shares are delivered upon
the exercise of this Warrant, the Company may cause a legend or legends to be
placed on such certificates to make appropriate reference to such foregoing
representations and to restrict transfer in the absence of compliance with
applicable federal or state securities laws.
SECTION 3. Transfer, Division and Combination. The Company agrees to
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maintain at its principal place of business, books for the registration and
transfer of this Warrant and, subject to the provisions of Section 2 hereof,
this Warrant and all rights hereunder are transferable, in whole or in part, on
such books at such office, upon surrender of this Warrant at
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such office, together with a written assignment of this Warrant duly executed by
the Holder or its agent or attorney and funds sufficient to pay any stock
transfer taxes payable pursuant to Section 4(b) of this Warrant upon the making
of such transfer. Upon such surrender and payment, the Company shall execute and
deliver a new Warrant or Warrants in the name of the assignee or assignees and
in the denominations specified in such instrument of assignment, and this
Warrant shall promptly be canceled. Notwithstanding the foregoing, a Warrant may
be exercised by a new Holder for the purchase of Ordinary Shares without having
a new Warrant issued if Holder shall otherwise have complied with the foregoing
provisions of this Section 3 and the applicable provisions of Section 2 hereof.
All of the provisions of this Section 3 are subject to the provisions of Section
2 above. This Warrant may be divided or combined with other Warrants upon
surrender hereof and of any Warrant or Warrants with which this Warrant is to be
combined, together with a written notice specifying the names and denominations
in which the new Warrant or Warrants are to be issued, signed by the holders
thereof or their respective duly authorized agents or attorneys. The Company
shall execute and deliver a new Warrant or Warrants exchangeable for the Warrant
or Warrants to be divided or combined in accordance with such notice.
SECTION 4. Successor; Taxes.
----------------
(a) Successor Company. The obligations of the Company under this Warrant
shall be binding upon any successor company or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor company or organization succeeding to all or substantially all of the
assets and business of the Company. The Company agrees that it will make
appropriate provision for the preservation of Holder's rights under this Warrant
in any agreement or plan which it may enter into or adopt to effect any such
merger, consolidation, reorganization or transfer of assets in each case, in
accordance with Section 5(a) below.
(b) Taxes on Conversion. The issuance of certificates for Warrant Shares
upon the exercise of this Warrant shall be made without charge to the Holder
exercising this Warrant for any issue or stamp tax in respect of the issuance of
such certificates, and such certificates shall be issued in the respective names
of, or in such names as may be directed by, the holder; provided, however, that
the Company shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issuance and delivery of any such certificate in
a name other than that of the Holder, and the Company shall not be required to
issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
(c) Withholding Taxes.
(i) Except to the extent otherwise required by law, the Company will
not withhold United States or United Kingdom withholding taxes from payments to
be made to holders of Warrants if such holders (a) are corporations organized
under the laws of a
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jurisdiction outside the United States or United Kingdom or are otherwise
persons not resident in the United States or United Kingdom for U.S. federal
income tax purposes or United Kingdom tax purposes, and (b) provide the Company,
upon the Company's reasonable request, with one or more of Internal Revenue
Service Form W-8, Form 4224 or other applicable form, certificate or document
prescribed by the Internal Revenue Service of the United States or Inland
Revenue of the United Kingdom certifying as to such holders' entitlement to an
exemption from any such withholding requirements.
(ii) Except to the extent otherwise required by law, the Company will
not withhold United States or United Kingdom withholding taxes from payments to
be made to holders of Warrants in excess of an applicable treaty rate if such
holders (a) are corporations organized under the laws of a jurisdiction outside
the United States or United Kingdom or are otherwise persons not resident in the
United States or United Kingdom for U.S. federal income tax purposes or United
Kingdom tax purposes, and (b) provide the Company upon the Company's reasonable
request, with one or more of certification of their residence address, Internal
Revenue Service Form 1001 or other applicable form, certificates or documents
certifying as to such holders' entitlement to a reduced rate of withholding
under any such withholding requirements.
(iii) Except to the extent otherwise required by law, neither Section
4(c)(i) nor Section 4(c)(ii) hereof shall require the Company to apply an
exemption or reduced rate of withholding during any period when it shall have
received notice or has knowledge (a) that the residence or other information
previously provided on any applicable form, certificate or document is incorrect
and no corrected form, certificate or document as applicable has been provided
to the Company, or (b) of any other information which would render such
exemption or reduced rate inapplicable.
(iv) Notwithstanding the preceding Sections 4(c)(i) and 4(c)(ii), if
the Company is required by law to withhold from amounts otherwise payable to a
holder of Warrants, whether by reason of a change in law or applicable treaty,
or because the applicable treaty withholding rate is greater than zero or by
reason of the failure of a holder of Warrants to provide a valid certification
or form, the Company shall withhold the amounts required to be withheld. Amounts
so withheld with respect to a holder in accordance with this Section 4 shall be
treated as distributed to such holder for all purposes of this Warrant.
SECTION 5. Adjustments to Aggregate Number. The Aggregate Number shall
-------------------------------
be subject to adjustment from time to time as follows and thereafter as adjusted
shall be deemed to be the Aggregate Number hereunder.
(a) Reorganization, Reclassification, Consolidation, Merger or Sale. If any
capital reorganization or reclassification of the Company, or any consolidation
or merger of the Company with another person, or the sale, transfer or lease of
all or substantially all of its assets to another person shall be effected in
such a way that holders of Ordinary Shares shall be entitled to receive stock,
securities or assets with respect to or in exchange for their shares, then
provision
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shall be made, in accordance with this Section 5, whereby the Holder hereof
shall thereafter have the right to purchase and receive, upon the basis and upon
the terms and conditions specified in this Warrant and in addition to or in
exchange for, as applicable, the Warrant Shares subject to this Warrant
immediately theretofore purchasable and receivable upon the exercise of the
rights represented hereby, such securities or assets as would have been issued
or payable with respect to or in exchange for the Aggregate Number immediately
theretofore purchasable and receivable upon the exercise of the rights
represented hereby if exercise of the Warrant has occurred immediately prior to
such reorganization, reclassification, consolidation, merger or sale. In the
event that the consideration payable to the holders of Ordinary Shares as a
result of such reorganization, reclassification, consolidation, merger or sale
consists solely of cash, the Holder shall be entitled to receive, upon exercise
of this Warrant in full, an amount of cash (the "Cash Consideration Amount")
equal to (x) the Aggregate Number in effect immediately prior to the
consummation of such transaction, multiplied by the cash consideration payable
per Ordinary Share as a result of such reorganization, reclassification,
consolidation, merger or sale, minus (y) the aggregate Exercise Price payable
hereunder. Upon the consummation of any such transaction, this Warrant shall
thereafter represent solely the right to receive such Cash Consideration Amount
and upon payment to the Holder of such Cash Consideration Amount or if the Cash
Consideration Amount is a negative number, this Warrant shall be of no further
force and effect. The Company agrees that it will make appropriate provision for
the preservation of Holder's rights under this Warrant in any agreement or plan
which it may enter into or adopt to effect any such consolidation, merger, sale,
transfer or lease and shall not effect any such consolidation, merger, sale,
transfer or lease unless at or prior to the consummation thereof, the successor
entity (if other than the Company) resulting from such consolidation or merger
or the entity purchasing or leasing such assets shall assume by written
instrument (i) the obligation to deliver to the Holder such securities or assets
as the Holder may be entitled upon the exercise of this Warrant in accordance
with the foregoing provisions and (ii) all other obligations of the Company
pursuant to the terms and conditions of this Warrant. The provisions of this
Section 5(a) shall similarly apply to successive consolidations, mergers,
exchanges, sales, transfers or leases.
(b) Distributions. If at any time or from time to time the Company shall
take a record of the holders of its Ordinary Shares for the purpose of entitling
them to receive or pays any dividend or other distribution to holders of
Ordinary Shares (collectively, a "Distribution") of:
(i) cash,
(ii) any evidences of its indebtedness (other than securities
convertible into Ordinary Shares ("Convertible Securities")), any shares of its
capital stock (other than additional Ordinary Shares or Convertible Securities)
or any other securities or property of any nature whatsoever (other than cash),
or
(iii) any options or warrants or other rights to subscribe for or
purchase any of the following: any evidences of its indebtedness (other than
Convertible Securities), any shares
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of its capital stock (other than additional Ordinary Shares or Convertible
Securities) or any other securities or property of any nature whatsoever,
then the holder of this Warrant shall be entitled to receive upon the exercise
hereof at any time on or after the taking of such record the number of Ordinary
Shares to be received upon exercise of such Warrant determined as stated herein
and, in addition and without further payment, the cash, stock, securities, other
property, options, warrants and/or other rights to which such holder or holders
would have been entitled by way of the Distribution and subsequent dividends and
distributions if such Holder (x) had exercised such Warrants immediately prior
to such Distribution, and (y) had retained the Distribution in respect of the
Ordinary Shares and all subsequent dividends and distributions of any nature
whatsoever in respect of any stock or securities paid as dividends and
distributions and originating directly or indirectly from such Ordinary Shares.
A reclassification of the Ordinary Shares into any other class of stock shall be
deemed a distribution by the Company to the holders of its Ordinary Shares or
such shares of such other class of stock within the meaning of paragraph (c) of
this Section 5 and, if the outstanding Ordinary Shares shall be changed into a
larger or smaller number of Ordinary Shares as a part of such reclassification,
such event shall be deemed a subdivision or combination, as the case may be, of
the outstanding Ordinary Shares within the meaning of paragraph (c) of this
Section 5. If the securities to be distributed by the Company involve rights,
warrants, options or any other form of Convertible Securities and the right to
exercise or convert such securities would expire in accordance with its terms
prior to the exercise of this Warrant, then the terms of such securities shall
provide that such exercise or convertibility right shall remain in effect until
30 days after the date the Holder of this Warrant receives such securities
pursuant to the exercise hereof.
(c) Stock Splits, Reverse Stock Splits or Stock Dividends. In addition to
those adjustments set forth in Sections 5(a) and 5(b), but without duplication
of the adjustments to be made under such Sections 5(a) and 5(b), if the Company:
(i) takes a record of the holders of its Ordinary Shares for the
purpose of entitling them to receive or pays a dividend payable in, or other
distribution of, Ordinary Shares;
(ii) subdivides its outstanding shares of Ordinary Shares into a
greater number of Ordinary Shares;
(iii) combines its outstanding Ordinary Shares into a lesser number of
shares of Ordinary Shares; and/or
(iv) makes a distribution on its Ordinary Shares in shares of its
capital stock other than Ordinary Shares,
then (A) the Aggregate Number in effect immediately prior thereto shall be
adjusted so that the holder or holders of this Warrant shall thereafter be
entitled to receive, upon exercise hereof, the number of Ordinary Shares or
other securities of the Company (such other securities thereafter enjoying the
rights of Warrant Shares under this Warrant) that such Holder would have owned
or
9
have been entitled to receive after the occurrence of such event had this
Warrant been exercised immediately prior to the occurrence of such event or the
record date with respect thereto, and (B) the Exercise Price shall (until
another such event) be adjusted to equal (calculated to the nearest full cent)
the quotient derived by dividing (x) the Aggregate Number in effect immediately
prior to such adjustment multiplied by the Exercise Price in effect immediately
prior to such adjustment, divided by (y) the Aggregate Number in effect after
adjustment pursuant to this Section 5(c).
SECTION 6. General Provisions Regarding Adjustments to Aggregate
-----------------------------------------------------
Number. The following provisions shall be applicable to the making of
------adjustments of (i) the Aggregate Number as provided in Section 5:
(i) The adjustments required by Section 5 shall be made whenever and
as often as any specified event requiring an adjustment shall occur, except as
expressly provided herein. For the purpose of any adjustment, any specified
event shall be deemed to have occurred at the close of business on the date of
its occurrence.
(ii) In computing adjustments under Section 5, fractional interests in
Ordinary Shares shall be taken into account to the nearest one-thousandth (.001)
of a share and shall be aggregated until they equal one whole share.
(iii) If the Company shall take a record of the holders of its
Ordinary Shares for an action described in Section 5 hereof, but abandons its
plan to take such action prior to effecting such action, then no adjustment
shall be required by reason of the taking of such record.
(b) Within 45 days after the end of each fiscal quarter during which an
event occurred that resulted in an adjustment pursuant to Section 5, the Company
shall cause to be promptly mailed to Holder (and upon the exercise of the
Warrant to the exercising holder) by first-class mail, postage prepaid, notice
of each adjustment or adjustments to the Aggregate Number, as the case may be,
effected since the date of the last such notice and a certificate of the
Company's Chief Financial Officer or, in the case of any such notice delivered
within 45 days after the end of a fiscal year, a firm of independent public
accountants in the United States selected by the Company and reasonably
acceptable to Holder (who may be the regular outside auditors employed by the
Company), in each case, setting forth the Aggregate Number, after such
adjustment, a brief statement of the facts requiring such adjustment and the
computation by which such adjustment was made. The fees and expenses of such
accountants shall be paid by the Company.
SECTION 7. Covenant to Reserve Shares of Ordinary Shares. The Company
---------------------------------------------
covenants and agrees that it will at all times reserve and set apart and have,
free from preemptive rights, liens, encumbrances and other charges, a number of
shares of authorized but unissued Ordinary Shares sufficient to enable it at any
time to fulfill all its obligations hereunder. The issuance of such shares has
been duly and validly authorized, and when issued and sold in accordance with
the Warrants, such shares will be duly and validly issued, fully paid and
nonassessable.
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SECTION 8. Call Rights. The Company shall have the right to call and
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require the Holder(s) of this Warrant to sell to the Company all of such
Holder's Warrants then outstanding on the date that is (90) days after the date
on which written notice is given by the Company to the record Holder(s) of this
Warrant of the Company's intent to exercise such call right if (i) the closing
sale price of the Company's American Depositary Shares on any national
securities exchange or automatic quotation system on which the Company's
American Depositary Shares are then listed or quoted, equals or exceeds $7.00
for twenty (20) consecutive trading days; and (ii) the average daily trading
volume of the Company's American Depositary Shares for such twenty trading day
period exceeds 50,000 shares per day; and (iii) during the 90 day period
commencing on the date the holder of this Warrant receives the Call Notice, the
Company shall have complied with Section 1(a) herein. Any such notice shall
comply with Section 14 below and shall specify the date for purchase of this
Warrant. The purchase price for each called Warrant shall be an amount equal to
(A)(x) the average closing sale price of the Company's American Depositary
Shares on the principal national securities exchange or automatic quotation
system on which the Company's American Depositary Shares are then listed or
quoted during the twenty trading day period prior to the date of purchase of
this Warrant, multiplied by (y) the number of Ordinary Shares issuable upon the
exercise of this Warrant, minus (B) the aggregate Exercise Price payable upon
the exercise of this Warrant in full. The purchase price shall be paid by the
Company by wire transfer of immediately available funds to an account designated
by the Holder of this Warrant against delivery by such Holder of this Warrant to
the Company for cancellation free and clear of all encumbrances. Notwithstanding
anything else contained in this Section 8, the Holder of this Warrant shall be
entitled to exercise the Warrant and sell the underlying Warrant Shares during
such ninety (90) day period in accordance with the terms of this Warrant.
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SECTION 9. Notices.
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(a) In the event that:
(A) the Company proposes to pay any dividend payable in stock (of
any class or classes) or any obligations or stock convertible into or
exchangeable for shares of Ordinary Shares upon its Ordinary Shares or make any
distribution (other than ordinary cash dividends) to the holders of its Ordinary
Shares;
(B) the Company proposes to grant to the holders of its Ordinary
Shares generally any rights or warrants (excluding any warrants granted to any
employee, director, officer, contractor or consultant of the Company pursuant to
any plan approved by the Board of Directors of the Company);
(C) the Company proposes to effect any capital reorganization or
reclassification of capital stock of the Company;
(D) the Company proposes to consolidate with, or merge into, any
other Company or to transfer its property as an entirety or substantially as an
entirety;
(E) the Company proposes to effect the liquidation, dissolution
or winding up of the Company; or
(F) the Company issues in one or more related transactions
Ordinary Shares, options, warrants, or other securities convertible into
Ordinary Shares, which in the aggregate constitute more than 10% of the
fully-diluted Ordinary Shares then outstanding,
then the Company shall cause notice of any such intended action to be given to
the Holder of this Warrant not less than 30 days before the date on which the
transfer books of the Company shall close or a record shall be taken for such
stock dividend, distribution or granting of rights or Warrants, or the date when
such capital reorganization, reclassification, consolidation, merger, transfer,
liquidation, dissolution or winding up shall be effective, as the case may be
(or in the case of any event described in clause (F) within 30 days after the
issuance of such securities).
(b) Any notice or other document required or permitted to be given or delivered
to the Holder of this Warrant shall be delivered in accordance with Section 14
herein.
SECTION 10. Limitation of Liability; Not Shareholders. No provision of
-----------------------------------------
this Warrant shall be construed as conferring upon the Holder the right to vote
or to consent or to receive dividends or to receive notice as a shareholder in
respect of meetings of shareholders for the election of directors of the Company
or any other matter whatsoever as shareholders of the Company. No provision
hereof, in the absence of affirmative action by the Holder to purchase shares of
Ordinary Shares, and no mere enumeration herein of the rights or
12
privileges of the Holder, shall give rise to any liability of Holder for the
purchase price or as a shareholder of the Company, whether such liability is
asserted by the Company, creditors of the Company or others.
SECTION 11. Loss, Destruction of Warrant. Upon receipt of evidence
----------------------------
satisfactory to the Company of the loss, theft, mutilation or destruction of
this Warrant, and in the case of any such loss, theft or destruction upon
delivery of a bond of indemnity in such form and amount as shall be reasonably
satisfactory to the Company (the original Warrantholder's indemnity being
satisfactory indemnity in the event of loss, theft or destruction of any Warrant
owned by such holder), or in the event of such mutilation upon surrender and
cancellation of this Warrant, the Company will make and deliver a new Warrant,
of like tenor and representing the right to purchase the same Aggregate Number
of Ordinary Shares, as adjusted in Section 5, as provided for in such lost,
stolen, destroyed or mutilated Warrant, in lieu of such lost, stolen, destroyed
or mutilated Warrant. Any Warrant issued under the provisions of this Section 11
in lieu of any Warrant alleged to be lost, destroyed or stolen, or of any
mutilated Warrant, shall constitute an original contractual obligation on the
part of the Company.
SECTION 12. Amendments. Neither this Warrant nor any term hereof may
----------
be changed, waived, discharged or terminated orally or in writing, provided that
any term of this Warrant may be amended or the observance of such term may be
waived (either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Company and the
Holders of the Warrants that are exercisable for a number of Ordinary Shares
that represent, in the aggregate, at least a majority of the total number of
Ordinary Shares for which all of the Warrants are then exercisable (whether or
not the Holder of this Warrant consents).
SECTION 13. Severability. If in any jurisdiction, any provision of
------------
this Agreement or its application to any party or circumstance is restricted,
prohibited or unenforceable, such provision shall, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of such provision in any other
jurisdiction or its application to other parties or circumstances.
SECTION 14. Notice. Any notice or document required or permitted by
------
this Agreement to be given to a party hereto shall be in writing and is
sufficiently given if delivered personally, or if sent by prepaid certified
mail, return receipt requested, to such party addressed as follows:
(i) If to the Company: Senetek Plc
000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxxxx 00000
Attention: President
copy to: Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
00
Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
(ii) If to the Holder: Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Senior Vice President,
General Counsel and
Secretary
Fax: (000) 000-0000
e-mail:xxxxxx.xxxxxxxx@xxxxxx.xxx
Notice so mailed shall be deemed to have been given upon receipt if delivered
personally or on the fifth business day next following the date of the returned
receipt. Copies of all notices shall also be sent by e-mail and facsimile
transmission on the date of delivery; provided, however, that notice shall be
deemed given at such time as specified in the first sentence above whether or
not such e-mail or facsimile transmission are received by Holder. Any notice
delivered to the party to whom it is addressed shall be deemed to have been
given and received on the day it is delivered. Any party may from time to time
notify the others in the manner provided herein of any change of address which
thereafter, until changed by like notice, shall be the address of such party for
all purposes hereof.
SECTION 15. Termination or Suspension of Company's Obligations.
--------------------------------------------------
(a) Cancellation of Warrant. This Warrant shall be cancelled immediately
upon:
(i) the Expiration Date, or
(ii) the termination of the License Agreement dated as of the date
hereof by and between the Company, Carme International Inc. and the Holder (the
"License Agreement").
(b) Suspension of Company Obligations. This Warrant shall not be
exercisable at any time (x)(i) when the Company has notified Holder of a breach
of the License Agreement pursuant to Section 8.2 thereof and (ii) in the case of
a payment breach, such breach has not been cured or waived or in the case of any
other breach, the Holder has taken diligent steps to cure such breach as soon as
reasonably practicable after receiving notice thereof or (y)(A) the Company has
notified Holder of its intention to terminate the License Agreement pursuant to
Section 8.3 thereof and (B) all amounts payable to the Company pursuant to the
proviso of Section 8.3 of the License Agreement have not been paid in full.
SECTION 16. Governing Law; Choice of Forum; Certain Consents; Waiver
--------------------------------------------------------
Of Jury Trial, Counterclaim, Setoff. THIS WARRANT SHALL BE DEEMED TO
-----------------------------------
14
HAVE BEEN EXECUTED AND DELIVERED AT AND SHALL BE DEEMED TO HAVE BEEN MADE IN NEW
YORK, NEW YORK. THIS WARRANT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
SUBSTANTIVE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY OF SUCH
STATE'S CONFLICT OF LAWS RULES OR PRINCIPLES). ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT HERETO AND THERETO SHALL ONLY BE BROUGHT IN ANY STATE OR FEDERAL
COURT IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, NEW YORK, AND, BY EXECUTION,
ACCEPTANCE AND DELIVERY OF THIS WARRANT, THE COMPANY HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND IRREVOCABLY WAIVES ANY OBJECTION,
DEFENSE OR CLAIM TO SUCH JURISDICTION WHICH MAY BE BASED, DIRECTLY OR
INDIRECTLY, ON THE GROUNDS OF FORUM NON CONVENIENS OR ANY OTHER BASIS THAT IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS WARRANT. IF ANY ACTION IS COMMENCED IN ANY OTHER
JURISDICTION, THE PARTIES HERETO HEREBY CONSENT TO THE REMOVAL OF SUCH ACTION TO
THE AFOREMENTIONED COURTS. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE HOLDERS
OF ANY OF THE WARRANTS OR WARRANT SHARES TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY IN ANY OTHER JURISDICTION. THE COMPANY WAIVES IN EACH SUCH ACTION AND
OTHER LEGAL PROCEEDING THE RIGHT TO TRIAL BY JURY AND THE RIGHT TO ASSERT ANY
COUNTERCLAIM OR SETOFF.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed in its
name by its duly authorized officer.
Dated: June 8, 2000
SENETEK PLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Chairman and CEO
--------------------------
15
EXHIBIT 1
EXERCISE NOTICE
The undersigned Holder hereby elects to exercise purchase rights
represented by such Warrant for, and to purchase thereunder ________ Ordinary
Shares covered by such Warrant and herewith makes payment in full therefor of
$_________ cash and requests that, subject to the terms and conditions of the
Warrant, certificates for such shares (and any securities or property
deliverable upon such exercise) be issued in the name of and delivered to
______________________ whose address is _______________________________________,
and whose social security or employer identification number is ____________.
The undersigned agrees that, in the absence of an effective registration
statement with respect to Ordinary Shares issued upon this exercise, the
undersigned is acquiring such Ordinary Shares for the Holder's own account and
not as a nominee for any other party, for investment and not with a view to
distribution thereof and that the certificate or certificates representing such
Ordinary Shares may bear a legend substantially as follows:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED
OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO SUCH SECURITIES UNDER THE ACT AND REGISTRATION OR
QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAW OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
AND QUALIFICATION IS NOT REQUIRED.
In addition, the undersigned agrees that, in the absence of an effective
registration statement with respect to Ordinary Shares issued upon this
exercise, stop transfer instructions will be entered on the Company's stock
transfer records with respect to Ordinary Shares issued upon this exercise.
Dated:
-----------------------------------
Signature guaranteed:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered Holder of the within Warrant
hereby sells, assigns, and transfers unto the Assignee(s) named below (including
the undersigned with respect to any Warrants constituting a part of the Warrants
evidenced by the within Warrant not being assigned hereby) all of the right of
the undersigned under the within Warrant, with respect to the number of Warrants
set forth below:
Social security or
other tax
identification number
Name of Assignees Address of Assignee(s) Number of Warrants
----------------- ----------- ---------------------- --------------------
----------------- ----------------- ----------------- -----------------
----------------- ----------------- ----------------- -----------------
----------------- ----------------- ----------------- -----------------
and does hereby irrevocably constitute and appoint ____________ the
undersigned's attorney to make such transfer on the books of _____________
maintained for that purpose, with full power of substitution in the premises.
Dated:
-------------------
----------------------------*
(Signature of Owner)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
--------------------------------------------------------------------------------
*The signature must correspond with the name as written upon the face of the
within Warrant in every particular, without alteration or enlargement or any
change whatsoever.
